Centre for Strategic Studies: New Zealand Victoria University of Wellington
No. 14/13
The Drone Debate
Sudden Bullet or Slow Boomerang?
Roderic Alley
D is c u ss io n
CSS Discussion Paper 14/13 Page 2 CENTRE FOR STRATEGIC STUDIES
NEW ZEALAND Discussion Papers
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2013
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CSS Discussion Paper 14/13 Page 3
The Drone Debate: Sudden Bullet or Slow Boomerang?
Roderic Alley
Roderic Alley is a Senior Fellow at Victoria University of Wellington‟s Centre for Strategic Studies (Roderic.Alley@vuw.ac.nz). While assuming full responsibility for the contents of this paper, the author gratefully acknowledges the comments and assistance of Louise Arimatsu, Robert Ayson, Douglas Barrie, Paul Buchanan, Dave Clemente, Charles Garraway, Patricia Lewis, Michael Meyer, Jim Rolfe, Ben Saul, Lewis Rowland, and a senior military lawyer retaining anonymity.
Introduction
Growth in the manufacture, military use, and transfer of unmanned aerial vehicles (UAVs or drones) and their associated systems proceeds apace. UAVs were initially employed on an intermittent basis for search and reconnaissance purposes, but it took the New York attacks of September 11 2001 to galvanise their production, proliferation and weaponisation. Since then the expansion of this technology has been remarkable. But so, too, has its accompanying controversy, both aspects explored in this paper which tests a claim that the drone phenomenon has become a lightning rod illuminating a range of hard legal, ethical and policy differences.
Although expansive, the current UAV discourse amongst concerned interests has revealed some conspicuous gaps. Absent are appraisals to adequately link key legal, foreign policy, security, and domestic political considerations emerging from drone proliferation.1 A composite perspective on the drone question is needed and that is the objective of this paper.
After further introduction, topic headings include utility which will embrace relevant security and foreign policy concerns; legality; accountability; ethical considerations; scope for possible controls; and summary conclusions. But to commence what are the primary contours of drone development, and why has it evoked continuing controversy?
CSS Discussion Paper 14/13 Page 4 Drone Proliferation: Substantial and Controversial
For military purposes, drone proliferation has been spurred by the advantages of mission versatility, strike accuracy, and relative economic cost. So, too, is the absence of own force casualties a major consideration. An ability to loiter for considerable periods adds to the quantum, if not quality of intelligence gathering, reconnaissance utility, and target identification functions. These weapons accelerate responsiveness: a drone fired missile can travel faster than the speed of sound, striking a target within seconds ahead of earshot. Their remotely controlled accuracy can reduce target area casualties; ostensibly a factor in the Obama Administration‟s enhanced use following the al-Majala cruise missile strikes in Yemen of December 2009 which killed 55 people with the assistance of cluster munitions.2 Military drones perform credibly when undertaking the so-called „dull, dangerous and dirty‟
tasks, for example routine surveillance functions, operations in high ground to air threat locations, and monitoring areas suspected of contamination by unexploded ordinance or landmines. And drone use can support deterrence objectives as in covering continued troop withdrawal from combat theatres such as Afghanistan. Although their supporting personnel requirements are extensive, these systems are relatively less expensive than manned aircraft.
Already substantial, the growth and international transfer of these systems is set to continue climbing. Miniaturisation is moving ahead rapidly, including devices carried by field rucksack, having a 10 kilometre range, fired from a mortar like tube, and operating to real time hand-held control. The 2.5 kg Switchblade, for example, can not only identify targets, but if necessary attack them through kamikaze-type strikes. What is purchased may offer dual use potential through reconfiguration for military purposes. Expanding rapidly are sought- after non-military functions embracing police intelligence, border surveillance, crop evaluation, search and rescue, forest fire identification, disaster relief, road accident monitoring, and law enforcement. And in a sign of the times, there is now drone use by the paparazzi.
A United States General Accounting Office Report of 2012 indicated that, as of December 2011, at least 76 countries had acquired UAV technology and associated systems whether for military, civil, or possible dual use.3 A major production entity, the Teal Group, assessed global UAV expenditure at U$6.6 billion as of 2012, a figure projected to double in the next decade.4 The United States‟ long term intentions are evident with an unmanned aircraft
CSS Discussion Paper 14/13 Page 5 systems flight plan extending to 2047.5 On the drawing boards is enhanced autonomy - drones capable of firing weapons based on algorithms should a human operator react too slowly, or where functions are compromised by electronic jamming.
In 2012, the US Air force was training more unmanned systems operators than fighter and bomber pilots combined. Given their relatively lower cost, UAV expansion is invigorated by scheduled cuts to defence spending. Accordingly some of this capacity is hired out, as with Australian, Canadian and German leases of Israeli made Heron systems. For one expert, Douglas Barrie, any moderately serious air force of the future will want at least a medium- level endurance drone equipped with reconnaissance and possibly weapons capability.6 Numerous countries are opting for tactical systems because they can more readily accommodate available dual use technology.7
The two dominant international suppliers are Israel and the United States. Israel is the biggest vendor of relevant technology, at times utilising subsidiaries in consumer markets. United States/Israeli cooperation on UAV development features within Washington‟s annual US$3 billion bilateral military assistance package. (This continues despite strains such as those seen after 2003 when Israel upgraded the radar seeking Harpy killer drone system, containing indigenous American technology, but then sold to China. After China tested this weapon over the Taiwan Strait a year later, the Americans suspended a strategic dialogue and technological agreement with Israel. That was resumed in 2005 on an understanding permitting the US to block Israeli third party arms sales deemed inimical to American security interests.)
While parallel Chinese activity has intensified, the United States dominates relevant research and development, activity boosted by vigorous lobbying from the Association for Unmanned Aerial Systems International which includes some of the leading American aerospace
companies. Since 2009 its conduit into the U.S. Congress House of Representatives has been the so-called „drone caucus‟; a companion Senate entity was established in 2012. Turkey, South Africa, Singapore, and states in Western Europe are also developing indigenous research, development, and production capacities.
As to controversy, most at public levels has arisen from claims that drone strikes have indiscriminately caused civilian casualties disproportionate to desired military objectives.8
CSS Discussion Paper 14/13 Page 6 Claimed accuracy of non-combatant casualties figures aside, there is no mistaking the gap between those officially declared, and the numbers derived from a variety of independent sources.9 Whatever the true totals, civilian casualties sustained by drone strikes within target locations have deepened local hostility against attackers and home governments alike. This limits the scope to negotiate ceasefires and weakens the public support required to secure enduring peace settlements. These obstacles are evident in Pakistan, Yemen, Afghanistan and the Israeli occupied territories. Such local hostility feeds insurgent recruitment and degrades access to reliable intelligence.
Public concern over military drone use has expanded through social media images and blandishments. Compelling are contrasts between the modesty of destroyed tribal area habitations, and the technical sophistication revealed by Predator or Reaper strike drones;
between those seen operating remote location operations in Washington or Nevada, ostensibly targeting with „precision‟, and those forlornly viewing the rubble of a destroyed family compounds; between arguments justifying drone strikes as legitimate military action in time of war, and those regarding it as assassination beyond the law. Of these, the most widely noted is that distancing killers from killed, remote operators removed from caution- inducing conditions of battle and combat.10
Regardless of position, few deny the public currency of these disjunctions. They are easily grasped and readily exploitable for an aggravation of grievances. Such divisions propitiate future polarisation by threatening to remain so, grist to the mill for insurgency networks employing terror and keen to foster international media coverage of their grievances.11 The risk is real, therefore, of military drone technology acting as an insecurity multiplier – a form of political oxygen galvanising insurgency. The manifestations of such hostility may be diverse and unpredictable, but not its constancy. Without doubt, drone use hardens existing prejudices.
Viewed more positively, controversies help illuminate contrasts of value, of ends, and of rule formation and application. Over value when weighing the worth of a civilian life as against perceived military necessity; about ends when testing the exploitation of an available technical military advantage against the foreign policy goals of attaining a secure peace within a conflict location; over rule formation and its application where established international customary rules and treaties encounter idiosyncratic interpretations concerning
CSS Discussion Paper 14/13 Page 7 compliance and implementation requirements. However employed, none of this debate is distant from drone use.
Some of it sustains persisting questions of consequence: what are the limits of an open-ended
„war on terror‟, what is meant by „unlawful combatancy‟; of justified „decapitation‟; or
„proportionality‟ in the use of lethal force? At times masking unexamined assumptions, the language employed warrants persistent interrogation. Should that task prove fruitless, then questions emerge as to whose interests are served by such indeterminacy?
Utility: The Security Dimensions
Assessing the military utility of drone technology requires matching performance against intended objectives. Warranting consideration is a five year period spanning 2008 to 2013 which witnessed enhanced drone use in Pakistan, Afghanistan, Yemen and the Israeli occupied territories. At that period‟s outset, what were the key military objectives entailed, and to what extent had they been achieved five years later? Were net security benefits discernible, or had enhanced military use acted as an insecurity multiplier in key target locations?
Security objectives have necessarily differed according to location, but some commonalities are evident. They include the elimination of insurgency leaderships of known willingness or capacity to employ terror on a transnational basis; related aims of weakening insurgent membership, organisational and recruitment capacity; and marginalisation of these entities in the national and international politics of settings concerned.
First, what of targeted leadership elimination? Whether achieved by drone strikes or other means, observers consider its security effectiveness as immediately conclusive but subsequently mixed. Jordan considers decapitation effectual in some locations, while counterproductive against larger, older, religious and separatist organisations.12Johnston‟s investigation found decapitation contributing to counterinsurgency by reducing insurgent attacks and levels of violence but, unsurprisingly, providing no „silver bullet‟.13 Counter- insurgency expert Byman has viewed leadership elimination instrumental in removing charismatic figures able to unify otherwise fissiparous movements.14 Afghanistan observer Kate Clark has viewed targeted killings as potent, but only to the extent they are followed by governance functions offering tangible benefits to local populations. If not, their impact is no
CSS Discussion Paper 14/13 Page 8 better than neutral.15 Her observations extend to key locations in Pakistan where, like Afghanistan, divided loyalties, failed governance, intrusions of external force, and localised violence have been endemic.
However spectacular and immediately final, leadership eliminations are no substitute for the lengthy, often frustrating tasks of familiarisation within settings that outsiders find initially alien and incomprehensible. Doing so requires skills of language competency, and an understanding of the histories, cultures and religions of previously subjugated societies.
Assumptions that these concerns have lesser importance have not arisen with drone technology alone. It is rather public and official mind-sets in Israel and the United States that deem the removal of terrorist leaderships of greater priority than remedying the grievances that they exploit.
Badly in need of such remedies have been Pakistan‟s troubled North and South Waziristan tribal areas immediately adjacent to Afghanistan. They have witnessed trans-border insurgent and criminal enterprises, such as the Taliban affiliated Haqqani network. This has maintained links with elements in Pakistan‟s army-led Inter-Services Intelligence (ISI) directorate although not as intimate as some suggest.16 Some drone leadership eliminations notwithstanding, the Haqqani network has sustained an active trans-border presence and enough capacity to kill those suspected of supplying information for use in targeting drone strikes. That depth of support was sufficient to have it designated a terrorist organisation by the United States in September 2012. In some instances, the removal of unwanted tribal and insurgent leaderships has been locally welcomed, though without preventing further intra- tribal conflict conducted in the absence of basic governing functions. This is what occurred within the Tehrik-e-Taliban after the August 2009 killing by CIA drone strike of prominent leader Baitullah Mehsud.
Perusal of leadership elimination data for Pakistan, collected by The Long War Journal, reveals a peak of activity between 2008 and 2011. These estimates give totals of 19 killed in 2008; 16 in 2009; 18 in 2010; 9 in 2011; and as of March 2013, two eliminations. Of that total of 64, 42 could be identified as either military commanders or closely associated with combat functions (bomb makers, suicide trainers, and shadow commanders), the remaining 22 fulfilling religious, financial, communications, and personal aide functions.17
CSS Discussion Paper 14/13 Page 9 In Yemen, a sharp rise of Al Qaeda leadership eliminations occurred in 2012 - a total of 42 compared to 10 in 2011 and four a year earlier. They included in 2011 high profile eliminations that included Abu Ali al-Harithi, a commander in the al Qaeda affiliated Aden Abyan Islamic Army, Fahd al-Qussa, Al Qaeda leader and suspect in the 2000 USS Cole bombing, and the CIA elimination of the subsequently discussed US citizen Anwar al- Awlaki.18 Evident in both Pakistan and Yemen by 2013 was the growing list of lower rung eliminations loosely categorised as „militants‟ or „foreign fighters‟. While dabbling in insurgency, the greatest motivation to violence by these people lies in exploiting unstable conditions for localised control of economic gain.
Second, this leads to security objectives designed to degrade insurgent group resilience and support. Again, results suggest partial effectiveness. They include precipitating constant flight from possible attack which helps to dislocate group cohesion, and to weaken opportunities to build support through forms of public assembly. Group cohesion is further disrupted by the alienation and mistrust engendered when insurgent formations kill or capture any suspected of receiving payment for supplying potential targeting information.19 However these retaliations, such as those executed by the Pakistani Khorosan Mujahedin, also reduce flows of reliable intelligence and an acquisition of potential target information gained by drone electronic intercepts The result is a mosaic of target area information, but not one providing a comprehensive picture of drone strike impacts upon insurgent group strength.
This applies in the Pakistan tribal areas, much of Afghanistan, southern Yemen, rural Somalia, but less so in the Israeli occupied territories.
This situation has created a difficulty of substance. It concerns the criteria and justification employed for elimination of lesser ranked insurgency memberships. Reliable on the ground human intelligence lacking, the barrier of targeting certainty has been lowered. This has allowed Washington to broaden its rules of engagement to embrace so-called „signature strikes‟, and where the observed behaviours and movements of potential targets obtained by wiretaps, aerial surveillance, or local informants is deemed sufficient to permit lethal attack.
This includes those generalised as „militants‟ or „foreign fighters‟ (Uzbeks in Pakistan and Afghanistan for example) considered distinct from known terrorist „personalities‟, as well as other assumed associates even where their actual identity is unknown. Covering military-aged males occupying a strike zone, this nomenclature is used to justify killing individuals not deliberately targeted. Conducting „signature‟ strikes against „militants‟ has aroused
CSS Discussion Paper 14/13 Page 10 considerable unease, being now the Achilles heel of drone operations conducted by the Central Intelligence Agency (CIA) and Joint Special Operations Command (JSOC) in Yemen and Pakistan.
A further concern surrounds the consequences of post-strike splintering within and between insurgent organisations. Hence while the Tehrik-i-Taliban Pakistan (TTP) insurgency was weakened by drone strikes, its subsequent fracturing led to an increased recourse to criminality. Closely linked to violence and instability, this reduced the net security benefit throughout Pakistan‟s troubled borderlands with Afghanistan. On the ground problems are compounded by an absence of legitimised political representation; remarkably it was not until 1996 that residents in the Pakistan tribal areas gained the right to vote, women under local pressure not to do so. Political alienation is compounded by fractured economic development, vulnerability to opportunistic criminality, antiquated administration, and trans-border mobility into and out of Afghanistan. Pakistan‟s insecurity and poor governance interact negatively - twin dilemmas deemed of „staggering‟ proportions.20 Resentment against central authorities has refracted more widely, including mounting anger within the Shia community, comprising 20 per cent of Pakistan‟s 180 million, against a government considered either unwilling or incapable of protecting them from a rising wave of sectarian killings.
In North Waziristan, insurgent leaderships issued edicts in 2012 banning polio vaccination programmes on grounds of their use to gather intelligence and conduct drone strikes in the tribal areas. Those concerned included the frequently drone targeted Hafiz Gul Bahadar, a prominent North Waziristan Haqqani affiliate, and Mullah Nazir an influential South Waziristan Taliban leader, subsequently killed in a January 2013 drone attack. Similar obstructions have impeded civil society formations prepared to advocate non-sectarian objectives such as overdue tax and land reform, non-violent dispute settlement, and female education.
To be sure, drone strikes are not solely responsible for an absence or dislocation of authority across Pakistan and Afghanistan. But their ripple effects are evident in settings where the reach of extended families and clans is extensive, porous, and trans-territorial. Readily informed by the loss of a known relative, this provides a fertile catchment for insurgent recruitment. It builds resentment sufficient to deny higher-level cooperation with any constituted authority known to maintain security links with the United States and its allies.
CSS Discussion Paper 14/13 Page 11 While the Pakistani government has in instances publicly condemned drone attacks as illegal violations of its sovereignty, in others it has acquiesced or supplied information used for elimination of the insurgent leaderships to which it is opposed. Suspicions have been confirmed that ruling military or political leaders have supported selective drone strikes against tribal leaderships inimical to their interests.21
Rapid urbanisation, youthful demographics, poverty and unemployment also offer fertile grounds for the propagation of insecurity in Pakistan. Radiating outwards, protracted factionalism in the tribal areas degrades economic conditions and heightens incentives to gain control of the criminal financing rife throughout Pakistan‟s major cities. This involves larceny, kidnapping, extortion, and smuggling. Karachi is considered an attractive hideout for Al Qaeda and Taliban groups avoiding drone strikes, and where its size and assortment of ethnic and linguistic groups facilitate clandestine operations that include attacks on the established political parties. Perpetrators include anti-Shia formations such as the Haqqani- linked Lashkar-e-Jhangvi network which supported the Defence of Pakistan Council that, ostensibly in retaliation against drone strikes, pressured the government in 2010 not to reopen NATO primary supply routes out of Pakistan. A local scholar, Hussain Nadim, has asserted that „drones will be useless if security forces are unable to stop a migration of militants into urban centres.‟22
In Yemen, the tempo of drone strikes quickened after May 2011 when Al Qaeda and its broader-based political affiliate, Ansar al-Sharia, gained control of a substantial segment of the Yemeni south.23 This risked further embroiling Washington within an essentially civil conflict, further complicated by sectarian violence in the north of the country.24 Tactics of the now deposed Saleh leadership persist, including adept utilisation of the American fixation with terrorism and Al Qaeda in the Arabian Peninsula (AQAP) to get financial assistance then abused to buy off the regime‟s supporting tribal sheiks. The greater is American determination to eliminate known AQAP elites, the less attention devoted to the country‟s glaring economic, governance, employment and social needs. These afflictions persist, notwithstanding improved resourcing of their needs following open letter demands to the US government by Middle East experts, including former American Ambassador to the Yemen Barbara Bodine.25 In some Washington policy quarters awareness is growing that economic distress, not resentment over drone strikes is the primary driver of insurgency.
CSS Discussion Paper 14/13 Page 12 Disputes over whether US drone strikes in Yemen provide fertile recruiting ground for the AQAP are secondary to a bigger question. 26 This simply asks what they are attempting to achieve into the longer term. For American Yemeni expert, Greg Johnsen, the United States does not have a Yemeni policy so much as a counter-terrorism strategy operating in that country.27 The dilemma persists of a Yemeni regime unable to remedy the long standing historical and tribal divisions feeding the growth of AQAP influence. An undue reliance upon drone strikes to reduce that influence is harming the regime‟s credibility amongst its local populace.
In other target settings, an accurate picture of drone strike impacts upon insurgent leaderships and their organisations remains incomplete. The extent and impact of Israel‟s employment of drones is not public, including use in Somalia. However some documentation of their civilian casualty toll has been published.28 Nor are indications forthcoming about whether drone secured intelligence, acquired by NATO members, is weakening the insurgencies that are fomenting conflict in Mali. By contrast most drone strikes in Afghanistan have been up front military operations, determined by local commanders and subject to review by military lawyers. Conducted largely in support of ground troop operations they increased sharply in 2012 compared to a year earlier.29 Manned air attacks resulting in unacceptable civilian casualties have aroused greater hostility from the Karzai government. Like Israel, it has been willing to utilise drone use for target identification.
The United Nations Assistance Mission to Afghanistan, utilising US data, reported drone strikes had increased from 294 in 2011, to 506 in 2012. This resulted in 16 civilian deaths in the latter year.30 That was seriously overshadowed by the estimated 2179 civilian deaths (81 per cent of the total) sustained at the hands of anti-government forces, many caused by improvised explosive devices.31 Given this conflict‟s propaganda war the statistic is
revealing, aggravated by an event witnessed in February 2010, when 23 local nationals were killed by a drone-directed US helicopter air strike. 32 The relatively lower number of
casualties inflicted by drone strikes is damaging because, unlike this conflict‟s amorphous anti-regime forces, it carries an identifiable source of blame. Drones thus sustain high profile killings, while those resulting from improvised explosive devices are locally mourned but collectively relegated to the debris of war. Afghanistan has no local Bureau of Investigative Journalism actively publicising the indiscriminate killing conducted by its conflicting factions.
CSS Discussion Paper 14/13 Page 13 In sum, much of the debate regarding the security effectiveness of a now decade long military drone campaign is unresolved. Without such evaluation a situation could prevail where, for Kilcullen and Exum, „the use of drones displays every characteristic of a tactic – or, more accurately, a piece of technology – substituting for a strategy‟.33 This indicates a front-end deficiency, prior evaluation lacking about how to accurately assess the impact of drone strikes in reducing insurgency and insecurity. This is pertinent where counter-terror operations, aimed at targeting known insurgent leaderships, sit awkwardly within a strategy of counter-insurgency designed to wean populations away from such leaderships. It is even more apposite where counter-insurgency is failing by supporting governments so weak as to crumble without massive external assistance
.
34Leadership eliminations have been sustained to immediate effect but permitted successors to continue exploiting local grievances by means of propaganda and insertion into international security agendas. Insurgencies have been hobbled in some locations, but refracted and regrouped elsewhere within unstable settings. Try as they might, drone strike strategies cannot avoid their contribution to a kaleidoscopic destabilisation of the settings within which they occur. Seemingly quick eliminations are revealed as no substitute for slow and tedious policy measures delivering enhanced security.
Utility: The Foreign Policy Dimensions
This investigation of drone utility has assessed two components: leadership elimination impacts, and intended damage to insurgent group cohesion. Both have achieved some desired results; both have raised doubts about their contribution to longer-run strategic objectives.
The hard questions they raise are further complicated when a third, foreign relations dimension enters the frame. Initially at least, a broadly similar pattern appears to apply. A weakening of external capacity by non-state insurgencies is followed by dispersal, splintering, and opportunistic exploitation of disorder. There comes a readiness to serve other state-based foreign relations interests as perceived advantages emerge. Hence the Pakistani- based Taliban have fomented disorder in Afghanistan as suits Islamabad‟s concerns over growing Indian influence in that country following allied forces withdrawals.
CSS Discussion Paper 14/13 Page 14 What might seem an obvious and immediate need - the removal of a known insurgent leadership - proves ineffectual once targeted groups begin stoking insurgent strategies instrumental to key goals such as an entrenchment of Sharia law. This is playing away as it were, into Iraq or Syria for example or, more distant, Mali and Nigeria. Seemingly decisive blows of leadership elimination shatter unpredictably throughout a variety of audiences among unstable environments. Jordan security expert Abu-Roman puts it simply: where there is state chaos and collapse, Al Qaeda will be active.35 From another perspective there is confirmation of Emile Simpson‟s important thesis: the outcome of much conflict is now guided less by body counts, than about how different outsiders „read‟ what they want to from such conflicts and respond accordingly.36
The foreign policy implications of drone proliferation extend beyond immediate target area insurgency locations. In the fraught politics of the Sino/Japanese maritime standoff over the Senkaku islands, China has signalled planned drone surveillance of the disputed area by 2015.37 Doing so will not allay tensions with the United States as China ramps up production of a Predator copy curiously named the Pterodactyl. Future American drone sales to Japan stand to further complicate Tokyo‟s testy relations with China. Unsettling as well are signs of drone strike competition emerging between North and South Korea, both developing so- called „kamikaze‟ drones, and between India and Pakistan.
In Europe, bilateral disputes over the terms of national involvement in co-production
arrangements represent quieter, but real difficulties for NATO. Relations in the Middle East are rendered difficult by Israel‟s use of neighbouring Jordan‟s airspace for drone intelligence over flight purposes. Elsewhere in the region, Iran and Turkey have resented Israel‟s US$1.6 billion arms deal with Azerbaijan that included drones, anti-aircraft and missile capabilities.
Concluded in February 2012, this agreement complemented existing political and economic cooperation between Israel and the Aliyev regime. Like other arms transfers, the coinage of drone transfers in the possible service of foreign policy objectives can prove double-sided.
Domestically governments are sensitive to public disquiet over drone strikes, and the concerns of analysts and policy practitioners apprehensive about precedents set by targeted killings.38 Further apprehensions exist over the future shape of a seemingly open-ended global war on terror, strains within important bilateral relationships, and public pressures on governments anxious to maintain good relations with the United States. All have increased with the intensification of drone warfare as a combat response to terrorism. Although
CSS Discussion Paper 14/13 Page 15 America‟s global war on terror has modified in rhetoric since September 11 2001, key policy designations shaped by that event have remained essentially intact. While Washington‟s unilateralist proclivities may have diminished, this possibility harbours foreign relations difficulties for any American administration seeking international support for its anti- insurgency campaigns. In some capitals, eyebrows have been raised over President Obama‟s direct involvement in drone target selection, possibly his means of ensuring enhanced collaboration between the CIA and the Pentagon. That continuous level of engagement is unusual, rendering such high office vulnerable to critical external scrutiny in the event of serious operational miscalculation. Meanwhile, interested outsiders stay tuned to the selectively leaked exposure of Washington‟s inter-agency drone policy contests.39
Although of disputed impact, retaliatory or so-called „blow back‟ responses resulting from drone strikes also raise concern among governments. The causalities entailed may be tenuous but cannot go discounted. 40 Somewhat opportunistically, Pakistan Foreign Minister Qureshi claimed in May 2010 that an abortive New York Times Square bombing was a blow back retaliation from US drone strikes targeting Taliban followers along the Pakistan/Afghan border.41 It is a valid question whether a „blow back‟ response would be any less had a strike been mounted by fighter ground attack off an aircraft carrier. Of deeper policy relevance, however, are the more diffuse causal linkages. Hence when describing 'how the proliferation of this technology will mark a major shift in the way wars are waged' US Arms Control Association Director Kimball has warned 'we need to be very careful about who gets the technology. It could come back to hurt us.'42 Indeed John Brennan acknowledged as much, saying that the US is 'establishing precedent that other nations may follow'.43
The drone strike strategy has exposed critical nerves in a range of bilateral relationships, most evidently between Pakistan and the United States - „at every juncture‟ according to a Pakistani Ambassador to the US, Sherry Rehman.44 The US would argue that its drone attacks are justified as acts of collective self-defence for its ally Afghanistan, defence of that country‟s sovereignty part of an on-going armed conflict with well-organized armed groups operating beyond its borders. A Pakistani view, contrary to American demands, would maintain that its longer term interests following the scheduled withdrawal of foreign forces from Afghanistan are not served by attacking militant affiliations, including the Afghani Taliban or the feared Haqqani network. In some form or another, goes Pakistani reasoning,
CSS Discussion Paper 14/13 Page 16 these entities will require some form of selective political accommodation which is not to deny their continuing capacity for destabilisation.
More obliquely Pakistan‟s leaders, when claiming their country‟s domestic radicalisation into extreme violence is attributable to drone strikes, use this to bargain over cooperation with Washington, the return being higher levels of economic assistance. A running sore in the relationship is the fact that much of the resource provided by Washington for security purposes through Coalition Support Funds, is unaudited, whether through lack of transparency in the army, waste, corruption or mismanagement.45
The country‟s national security is compromised by an unhealthy coexistence where Pakistan‟s secret agreements of selective cooperation with the United States are left open to public denial by either side. This concerns other governments, uneasy about having host state consent to drone strikes based on the shifting atmospherics of „wink and nudge‟ signals conveying selective approval. For them, and rightly so, this smacks of making up the rules while travelling along. In the interests of unambiguous sovereignty, they have argued, host state consent has either been granted or it has not.
Here Pakistan cannot avoid the responsibility to utilise formal means of protest over sovereignty violations or recourse to possible international remedies.46 Like other drone target entities, it has obligations to respect and protect the human rights of its citizens or other nationals within its territory under a general prohibition of extrajudicial killing under international law. Some see the „fervent anti-Americanism‟ evident in Pakistan best reduced by increased accountability of its government for civilian casualties and where, in the tribal areas, compensation has been lacking following seriously misdirected strikes.47
The trust gap dividing the United States and Pakistan will need to narrow for any peace settlement to endure in Afghanistan. A lack of transparency surrounding covert CIA and JSOC drone operations within Pakistan, whatever its security justifications, limits prospects for stable foreign policy cooperation between Washington and Islamabad. As important is resolution of a key difference identified: when, and on what terms will a negotiation occur with groups holding enough power to indefinitely prolong an ever damaging stalemate?
CSS Discussion Paper 14/13 Page 17 When contrasting remotely controlled strikes with conventional military operations, former White House adviser Brennan maintained that „large intrusive military deployments risk playing into Al Qaeda‟s strategy of trying to draw us into long costly wars that drain us financially, inflame anti-American sentiment and inspire the next generation of terrorists.‟48 Unexamined, was the possibility that remotely conducted drone strikes risk similar consequences, including hostility to unrelated forms of western intervention including humanitarian assistance.49
The line demarcating targeting killings from assassinations is another fine one whose breach incurs reputational damage. Governments cooperating with the United States are exercised over the negative domestic publicity emanating from what former Director of National Intelligence, Dennis Blair, has characterised as an intense focus on drone strikes. Or more bluntly by former CIA Director Leon Panetta as „the only game in town‟ for disrupting Al Qaeda leadership.50 The disquiet identified extends to intelligence cooperation, worries evident among British and European officials over possible legal liability emanating from connection to an American drone campaign considered not just unpopular but illegal in their home jurisdictions.
Retaining relevance is a 2008 Rand investigation about why terrorist groups cease their activities. Evaluating 268 groups between 1968 and 2006, it found 43 per cent went out of business following a political settlement with a host government; 40 per cent as a result of effective policing and intelligence penetration; 10 per cent after they had achieved some form of military victory; but only seven per cent through subjugation by military force.51 Even if no more than partly correct, these figures do not comfort governments looking to build relationships in the decade ahead with states currently sustaining drone strikes. Interests include security of energy supplies, lessened sectarian tensions, reduction of illicit arms flows, and support for multilateral processes fostering trade, development and human security.
The Legal Debate
At times arcane, the legal debate over drone strikes has been intense; it has also been necessary. Key differences include the actual boundaries of „self-defence‟, „imminence‟ of perceived threat as justification for anticipatory military action, and the relative writ of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) in
CSS Discussion Paper 14/13 Page 18 conflicts both internal and international. The importance of these rules notwithstanding, a healthy regard to the limits of the law over contentious political and foreign policy issues is nevertheless warranted. And what is legal may not always be wise.
IHL comprises a body of rules designed to limit the effects of armed conflict by protecting those who are not combatants, or who have ceased to perform those functions. Nobody is beyond the reach of these rules. These provisions interrelate: first, the civilian/military distinction which is central to IHL offers protections to civilians so long as they are not making a direct contribution to military operations. Second, is the proportionate use of force.
While in situ judgements will shape proportionality determinations, the bottom line insists that it is unlawful to destroy people or objects unless that is demanded by military necessity.
This relates, thirdly, to the rule of precaution: a requirement to take all feasible measures in the means and methods of attack so as to avoid, or at the least minimise incidental loss of civilian life, injury to civilians and damage to civilian objects, including religious and cultural sites.
This body of law embraces customary rules, treaty prohibitions against particular forms of weaponry and, threaded through the four seminal, universally subscribed to Geneva Conventions of 1949, a common article applicable in all forms of conflict, internal or international. This includes prohibitions against violence to life and person, including murder, torture and inhumane treatment; against hostage taking and outrages upon person dignity;
against summary justice and extra-legal execution conducted outside regularly constituted courts, offering the judicial guarantees recognised as indispensable by civilised peoples.
International Human Rights Law (IHRL) is a set of international rules established by treaty or custom affording people, by nature of their common humanity, a range of protections including those prohibiting arbitrary deprivation of life and liberty. The main treaty sources include twin International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights (1966); Conventions outlawing genocide (1948), racial discrimination (1965), torture (1984), and protections of the rights of the Child (1989). More recent treaties such as the Rome Statute (1998) establishing the International Criminal Court include provisions drawn from both IHL and IHRL. Of further relevance to the use of force are United Nations human rights mechanisms performing monitoring and standard setting functions outside the treaty sphere.
CSS Discussion Paper 14/13 Page 19 Clarity obtains to the extent that, for situations not involving a conduct of hostilities, human rights law assumes prior application. Here the grounds for use of lethal force are reasonably consistent: IHRL requires states use force as a last resort to protect against immediate and specific threats of death or serious physical injury. Furthermore, it requires that an opportunity to surrender is offered prior to an employment of lethal force, something drones obviously cannot provide. In instances of extreme national emergency, IHRL protections may be waived but not indefinitely. Under the International Convention on Civil and Political Rights (Article 4:2) such derogations cannot permit the arbitrary taking of human life.
Against this background why have drone strikes provoked legal controversy? First, they have inflamed debate as to not just conduct in conflict (in bello considerations), but initial resort to force in the first instance (the ad bellum factor). The latter has evolved to guide conduct between states, although its invocation has struck difficulties once the use of force is employed against non-state actors such as Al Qaeda acting in ways not attributable to any particular state. Pertinent to drone strikes is whether invocation of ad bellum rules permits states to unilaterally take forcible measures against non-state actors. Dusted down for consideration, though no more than partly followed, remains Webster‟s still pertinent 1837 Caroline case test justifying anticipatory pre-emptive action across borders and comprising necessity, proportionality, and imminence of attack.52 Obviously some threshold acknowledging proportionality is required, but when countering non-state actors its means of legal identification and substantiation remain unsettled and contentious.
A second dispute has arisen over whether interpretations of „the battlefield‟ as operational construct, have widened to the extent that they trump IHRL provisions. In this instance, targeted killing by drones is justified on grounds of so-called „imminence of threat‟, and impracticality of dealing with it by conventional law enforcement methods. However the attempted justifications of drone strikes in this manner unsettles the extra-territorial applicability of human rights treaties, the limits of „emergency‟ criteria employed to justify a derogation of human rights obligations, or the conditions under which human rights norms bow to the prior, so-called lex specialis application of humanitarian law.53 These concerns pre-date the arrival of drone strikes but, to reiterate, have been intensified by them.
CSS Discussion Paper 14/13 Page 20 Accordingly observers note an uneasy no-man‟s land between IHRL and IHL rules and principles exposed by targeted drone strikes. Radsan and Murphy see controversy over targeted killing stemming from its lack of fit with either IHRL or IHL.54 Schmitt identifies uncertainty in the extra-territorial application of human rights rules, and whether transnational terrorism, lacking specific connection to an on-going conflict, does in fact constitute an „armed conflict‟.55 Within the United States, the anti-terror campaign has sustained sufficient political momentum to allow its office-holders the leeway to claim that they remain engaged in an international conflict, thus justifying subordination of IHRL to the law of armed conflict.
Unanswered is the question about why the IHRL route was not taken in Yemen? This goes beyond American lack of confidence in the Yemeni government‟s willingness, or capacity, to conduct the policing and local surveillance needed to apprehend and prosecute known local insurgent leaderships. If relevant human rights law is not applicable extraterritorially, and should both the United States and Yemen smudge accountability or responsibility for drone strikes, then a legal lacuna of some magnitude is soon apparent.56 The Yemen example further highlights the need for a clear demarcation between insurgency facing the sanctions of criminal law, and use of force authorised under the UN Charter.
However this leads to a third area of contention concerning the limits of UN Charter Article 51 provisions regarding use of lethal force in self-defence. Bethlehem has noted a „normative drift‟ towards „self-defence‟ as it becomes a general purpose catch-all used to justify much contemporary military activity.57 That includes not only conditions used to justifyArticle 51 invocation, but the scale and timing of „self-defence‟ responses. Doubts exist about its indefinite employment in response to discontinuous attacks, including failure to implement Article 51 requirements for immediate reporting to the UN Security Council.58
Drone strikes have further challenged any emerging consensus as to what constitutes an overt conduct of hostilities. This has developed from the definition given by the International Criminal Tribunal for former Yugoslavia (ICTY) Appeals Chamber in its Tadić Decision on Jurisdiction which, in turn, helped shape Article 8(2)(f) of the Rome Statute. The ICTY ruling held that an armed conflict exists whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups, or between such groups within a state.59 The Rome Statute article identified requires no
CSS Discussion Paper 14/13 Page 21 territorial control by an insurgent group, an armed conflict existing between two armed groups without territorial control, but providing that certain organisational and conflict intensity thresholds are met. Accordingly this refers to „armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups‟.
Unsettled as well are demarcations distinguishing terrorism from criminality, the nature of direct participation in hostilities, primary state responsibility for military action in disputed borderlands, and the twilight status of those deemed neither civilians nor combatants but
„militants‟. (Here the news media has been criticised for its failure to more rigorously probe what is meant by such twilight status.)60 Public controversy over UAV proliferation is further fuelled by concerns that it heralds an inception of increasingly automated weapons systems, incapable of making the distinction and proportionality humanitarian law judgements required prior to military use. Accordingly the military use of drones is attracting but not resolving contested human rights and humanitarian law treaty obligation requirements. It is another example of the drone lightning rod function previously identified.
Where, then, does this leave us from a legal perspective? Some help has come from particular rulings. For example the Israeli Supreme Court determined in its 2006 Targeted Killings case that such actions could not be determined by customary international law prohibitions, being subject to situational determinations. The Court nevertheless stipulated a requirement for well based, convincing evidence of an individual‟s terrorist activities, the killing of civilians taking a direct part in hostilities prohibited where arrest and prosecution were employable.
Post-attack investigation required thorough and independent evaluation of target accuracy, every effort made to minimise harm to civilians. Arrest and trial was considered „practical under the conditions for belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation and trial are at times realizable possibilities.‟61
The ruling thus identified some concurrence of IHL and IHRL principles. While the court rejected the notion of „unlawful combatancy‟, the word „area‟ was construed expansively to include that beyond state boundaries. This avoided the question of whether Palestinians are protected persons in territories effectively controlled by Israel, that conflict deemed an international one. In the event, these findings did not materially alter Israeli military drone
CSS Discussion Paper 14/13 Page 22 strike policy prior to, and since Operation Cast Lead within Gaza during December 2009 and January 2010.62 (Strikes conducted in Gaza after 2006 had previously widened in use, at times harnessed with dense inert metal explosive weapons. By 2009 Israel had also conducted drone strikes into Sudan, action designed to disrupt the flow of Iranian sourced weaponry into the Gaza Strip.)63
In April 2009, the Israeli military released results of an internal investigation which concluded that its forces „operated in accordance with international law‟ during Operation Cast Lead and that „a very small number of unavoidable incidents‟ occurred owing to
„intelligence or operational errors‟.64 Israel‟s refusal to cooperate with the subsequent Goldstone enquiry meant the number of Gazans killed went undisclosed, or how many of them could be considered combatants.
Overall it has not been hard to assemble an official rationale claiming that, yes, some drone strikes have occurred on grounds of questionable legal and institutional responsibility, and that yes, civilian casualties have unfortunately resulted, but at least these responses are preventing further terrorist outrages while shielding orderly force withdrawals from associated theatres of conflict. Moreover the casualty count, it is argued, is no worse and may well be less than that caused by air strikes (as in Kosovo 1999), cruise missile attacks, tank fire and artillery use. That said drone strike use faces the inevitable, unavoidable policy question confronting any form of military intervention about what is meant to follow in its wake.
The Brennan Defence
In response to concerns immediately outlined, an active defence of the Obama Administration‟s drone policy was mounted in April 2012. The then White House homeland security adviser, John Brennan, in a widely noted statement flatly claimed that nothing in international law prevented such strikes. Since September 11 2001, he maintained, the United States had been engaged in an international conflict with Al Qaeda and its associates, all legitimate targets remaining within an „active‟ or „hot‟ battlefield.65 The targeting and killing of terrorists beyond such a battlefield was done as a last resort when capture was not possible.
Pilots controlling drones, he claimed, had „unprecedented ability‟ to minimise collateral damage. The drone campaign would continue „at least when the country involved consents or is unable or unwilling to take action against the threat.‟66
CSS Discussion Paper 14/13 Page 23 Domestic United States concerns over the approach articulated by Brennan had sharpened following the extra-judicial killings of three of its citizens in Yemen in 2011. They included the previously mentioned Anwar al-Awlaki, suspected of conspiring to commit international terrorist acts, his 16-year old son Abdulrahman al-Awlaki, and Samir Kihan, a known jihadist. The drone strikes involved were launched from a then secret base in Saudi Arabia, a facility established under the direction of former CIA Saudi station chief, the same John Brennan. Civil liberties interests claimed such killings violated US Fifth Amendment constitutionally guaranteed rights afforded any persons (not just US citizens) not to be deprived of life without due process of law and, as well, obligations under the International Convention on Civil and Political Rights which the United States has ratified.67
Dispute continued about the standards utilised when deciding to employ lethal force against a US citizen in a foreign country, and as identified by US Attorney General Holder in a March 2012 statement. This cited the necessity for military action against an imminent threat of violent attack against the United States; non-feasibility of capture; and operations conducted in a manner consistent with applicable IHL principles of distinction and proportionality.68 This position was backed by an earlier, initially undisclosed US Department of Justice Memorandum of 2010. Determining the nature of „imminence‟ subsequently featured during the publicised 2013 US Senate confirmation hearings for President Obama‟s nominated Head of the CIA, John Brennan.
Those hearings coincided with the release of a US Department of Justice „White Paper‟
asserting that an „informed, high-level‟ official may determine that a targeted American
„recently‟ involved in „activities‟ posing a „threat of violent attack‟ is deemed sufficient to pose an „imminent‟ threat.69 Not a formal judicial opinion, this memo expanded on the approach adopted by the immediately previous Bush Administration, enunciated by its senior official John Yoo claiming that the courts have no role in ruling on how the Executive chooses to use force. Not surprisingly concerns arose over whether such discretion should solidify as a new norm asserting a right to strike pre-emptively against anyone suspected of planning attacks.70
In the instances cited – Yemen, Israel, Pakistan and Afghanistan – fealty to IHL essentials stands to deliver practical results for all parties in conflict. Violations of these rules, whether
CSS Discussion Paper 14/13 Page 24 by drones strikes or improvised explosive devices, risks a degrading of the legitimacy of sought objectives. Such violations weaken possibilities for needed cooperation between states in fostering national criminalisation of terrorism, including the activities of its financiers.
Here numerous models and templates exist, notwithstanding some rights provision inadequacies.71
Accountability
Contending positions have also been struck over due process and accountability, over resort to force, and over the proportionality and distinction rules of IHL. Here, comprehensive and objective public verification of all military drone activity is incomplete due to a lack of independent international monitoring able to reliably assess the legality, civilian impact and incidence of strikes. As well, some national security interests resist disclosure, fearing it will restrict operational choice about who is killed, when, and where. In response to inadequate disclosure, the United Nations established an investigation unit in October 2012 to inquire into individual drone attacks, and other forms of targeted killing conducted in counter- terrorism operations.72
Deficiencies of public accountability by governments employing lethal force leave them unable to discharge their international human rights and humanitarian law obligations. This compromises international humanitarian, human rights, and criminal law demarcations of function and responsibility. Failure to publicly disclose procedures for enforcing compliance with applicable law makes it impossible to determine whether a government is compliant. For Kramer: „Making public the procedures for target selection may be the most effective means to confront human rights challenges to targeted killing. In particular, if the US wants to keep the higher moral ground, it should afford the public the process of clear, systematic target selection procedures to minimise the risk of targeting an unlawful target (i.e. a civilian), and thereby invoking guilt for a war crime under the Rome Statute.‟73
Motivations for secrecy aside, it is evident that, in Spoerri‟s words, „lack of objective knowledge constitutes a great impediment for the assessment of the lawfulness of weapons or their use in particular circumstances.‟74 Such a lack creates analytical difficulties, although an absence good faith treaty implementation reporting may, of itself, constitute a form of negative evidence. However some clarification is possible when discerning how relevant
CSS Discussion Paper 14/13 Page 25 human rights and due process considerations have applied within activities constituting this form of armed conflict.
Retaining its significance in the United States is the 2001 Authorisation for the Use of Military Force (AUMF) legislation.75 Sweeping and open-ended, and endorsed by Congress with virtual unanimity, this authorised the President to „use all necessary and appropriate force‟ in pursuit of those responsible for terrorist attacks. Following Israeli precedent, the Bush Administration utilised the AUMF to employ lethal force in „anticipatory‟ self-defence, construed terrorism an act of war not a crime, enshrined the dubious status of „unlawful enemy combatant‟, and compromised the due process entitlements available under military commission procedures.
In February 2012, Department of Defence General Counsel Johnson reaffirmed the bedrock centrality of the AUMF for the military‟s national legal authority. This included a prerogative to kill targets „with a geographical limitation‟ including „belligerents who happen to be US citizens‟ as well as „associated forces‟ considered co-belligerents with Al Qaeda. Left unclear was whether „associated forces‟ included those who may have subsequently joined Al Qaeda beyond the original September 2001 involvement stipulated under the AUMF.76 That obscurity leaves open an indefinite prolongation of drone strikes, against a potentially widening circle of targets no matter how tenuous their links to the execution or planning of the September 2001 attacks. Concerns have been voiced that AUMF standards employed to detain individuals are also extended to lethal targeting, including liability for criminal prosecution, financing an organisation, or performing propaganda functions.77
The wide-ranging authority conferred by the AUMF was utilised in 2009 for designation of
„overseas contingency operations‟ this a more anodyne, less provocative characterisation of the war on terror.78 Regardless of any modification since the 2011 operation that killed Osama bin Laden, the momentum demonising terror against the United States and its allies has persisted. Its carry has helped curb public scrutiny of drone warfare conduct that, prior to September 11 2001, would have been more searching - in particular, acts of extra-judicial killing abroad.
Here a major shift has occurred from a decade earlier when Washington denounced Israel‟s use of targeted killing against Palestinian terrorist suspects. In that event, American
CSS Discussion Paper 14/13 Page 26 Ambassador to Israel, Martin Indyk, asserted that: „The United States government is very clearly on record as against targeted assassinations … They are extrajudicial killings, and we do not support that.‟79 That mirrored former President Reagan‟s Executive Order 12333 reaffirming a general prohibition that: „no person employed or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.‟
If maintained, the executive discretion now entailed in targeted killing constitutes a precedent of substantial constitutional and operational significance for the United States and its allies.
For Jack Goldsmith, former head of the US Justice Department‟s Legal Counsel, such a precedent „implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution‟s time limits.‟80 That view was not unanimously supported with divisions evident among President Obama‟s legal advisers over whether American engagement in Libya constituted „hostilities‟ of a nature sufficient to require invocation of the War Powers Resolution.81
Even more pointed criticism of defective operational accountability came from former UN rapporteur on extrajudicial, summary or arbitrary executions Philip Alston. In a lengthy 2011 contribution, he claimed that CIA conduct of drone strikes lacked credible transparency or accountability, neglect or intentional disregard of existing executive control mechanisms, and deficient congressional and judicial oversight. The unprivileged status of CIA operatives conducting drone strikes, moreover, undermined international legal distinctions demarcating civilian and military personnel. Not fully trained in IHL, they were considered by this commentary unlikely to take account of the proportionality and distinction constraints required under its rules when conducting drone strikes.82
Similar shortcomings apply to drone operations conducted by the United States JSOC. Not surprisingly voices have been increasingly raised for the US military to relieve the CIA of its drone strike operations in Pakistan, „more a legacy of its long-time dominance [in] targeting al Qaeda than a reflection of any special expertise in drone warfare.‟83 Here a disconnect has emerged between the standard-rations professional military, trained in the law of armed conflict, and the more generously resourced special forces operations less heedful of these rules. Perceived inconsistencies are also contagious, evidence of violated distinction encouraging insurgents to launch attacks from protected civilian sites, engage in the perfidious use of religious clothing, and employ human shields.
